Supreme Court Oral Argument Video: A Review of Media Effects Research and Suggestions for Study

Carter, Edward L., Brigham Young University Law Review

I. INTRODUCTION

As the U.S. Supreme Court prepared to hear three days of oral argument about the constitutionality of the Patient Protection and Affordable Care Act in early 2012,1 C-SPAN co-founder and CEO Brian P. Lamb wrote a letter to Chief Justice John G. Roberts asking the Court to permit cameras in the courtroom for the arguments. Given the Court's past rejections of his requests to allow cameras in the courtroom, Lamb tried a targeted approach: "[W]e ask you and your colleagues to set aside any misgivings you have about television in the Courtroom in general and permit cameras to televise live this particular argument."2 In recent decades Lamb and C-SPAN have carried the banner for live video at the Supreme Court, dedicating a prominent portion of the C-SPAN website3 to the effort and regularly discussing the topic on the program "America and the Courts." In his letter, Lamb appealed to the Justices' sense of the importance of their work:

We believe the public interest is best served by live television coverage of this particular oral argument. It is a case which will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign. Additionally, a five-and-a half hour argument begs for camera coverage - interested citizens would be understandably challenged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating.4

Lamb anticipated that the Court might consider cameras and accompanying electronic broadcast equipment in the courtroom obtrusive, and he promised C-SPAN would minimize disruption of court proceedings and serve as the pool provider to facilitate video access to all interested broadcasters without the need for multiple organizations' cameras.5

Lamb and C-SPAN were not the only ones who thought broadcasting oral arguments in National Federation of Independent Business v. Sebelius6 would be a good idea. Just weeks before oral argument, Republican Senator Chuck Grassley of Iowa and Democratic Senator Dick Durbin of Illinois introduced a bill in Congress to require television cameras in oral arguments unless a majority of the Justices concluded it would violate the due process rights of at least one participant.7 Predictably, the legislation went nowhere. But news media organizations formed a chorus in favor of cameras. In the run-up to the health care oral arguments, news organizations that editorialized in favor of cameras in the Supreme Court included the St. Petersburg Times, Fort Wayne Journal Gazette, Portland's Oregonian, Boston Globe, Hufflngton Post, Washington Post, and Los Angeles Times} Former Solicitor General Kenneth Starr wrote an op-ed in the New York Times pointing out the irony of the Court's reluctance to allow cameras in light of the Court's own opinions in free-speech cases that manifest a "stubborn insistence on freedom of communication in a democratic society."9

The Justices, apparently, were underwhelmed by it all. Roberts declined the broadcast invitation from Lamb as well as a similar one from Grassley, who responded by taking credit for the Court having released same-day audio recordings in twenty cases since Bush v. Gore10 in 2000. n In the health-care case, the Court again acquiesced to sameday audio release rather than waiting until the end of the week.12 During three days of oral argument, the lack of cameras may have contributed to a frenzied atmosphere in which reporters scrambled in and out of the courtroom to provide live updates, and at least one observer was accused of live tweeting from the courtroom in violation of Court rules.13

Although the fight over cameras in the Supreme Court is not new, this Article seeks to shift the debate - in line with invitations from the Justices themselves14 and in concert with a thus-far relatively small number of other scholars15 - from a legal discussion to a conversation about the effects of televising Supreme Court oral arguments. …

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